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New bipartisan brownfields legislation in the Senate could let some entities off the
hook for contaminated site cleanup, while allowing more parties to become prospective
site purchasers.

The Senate Environment and Public Works Committee July 12 approved the Brownfields
Utilization, Investment, and Local Development Act of 2017 (S. 822). The committee
approved an amendment to the bill by voice vote that would change the liability qualifications
for parties responsible for the cleanup of Alaska properties and tenants interested
in buying and redeveloping brownfields.

A spokesman for the committee declined to state whether the bill is expected to reach
the Senate floor before members’
August recess.

But urban areas see the benefits, too, said Michael Egenton, executive vice president
of the New Jersey Chamber of Commerce.

“We’ve always been supportive, in concept, of taking properties that are just sitting
idle and having them remediated and cleaned up so that they can go to potential use
for localities and for businesses,” he told Bloomberg BNA.

Relief for Alaska Natives

The bill proposes shielding Alaska Native villages and Alaska Native corporations
from liability for cleanup at contaminated properties they received from the federal
government. The 13 Native corporations administer settled land and financial claims
made by the Alaska Natives. The relief wouldn't apply to villages or corporations
that contributed to or caused contamination.

In March, Sarah Lukin, board member of the Afognak Native Corp. in Alaska, testified
before the committee that the potential liability for contaminated sites is keeping
Alaskans from reporting toxic sites.

They are afraid they will have to pay millions for remediation, she said.

A 1997 EPA policy meant to alleviate uncertainty in situations like those hasn't sufficiently
addressed the issue, according to the Alaska Native Village Corporation Association.

“To have received the contaminated lands at all was an injustice, but to be left with
the liability to clean up the waste left after years of abuse by various government
agencies is simply unacceptable,” Hallie Bissett, executive director of the Alaska
Native Village Corporation Association, told Bloomberg BNA.

Bissett said she is “encouraged”
by the amendment’s provisions for Alaska Native villages and Alaska Native corporations.

Protecting Tenants

The Senate bill also proposes changes for those in tenancy agreements or leases with
owners of contaminated sites.

Under the proposed changes, those tenants or lessees would be allowed to qualify as
“bona fide prospective purchasers” of those sites.

Those changes are “on the margins,”
said Larry Schnapf of Schnapf LLC, an environmental law firm specializing in brownfields.

“Most of the nation’s brownfields are addressed under state programs by private developers,
so the federal assistance is not really a game changer, except perhaps for some very
distressed areas,” he told Bloomberg BNA.

Having bona fide prospective purchaser status allows a person to acquire a brownfield
site with known or suspected contamination without becoming liable for the contamination.

Such a purchaser must demonstrate that they aren't affiliated with liable parties,
among other conditions.

House Action

On June 28, the House Energy and Commerce Committee put its stamp of approval on
H.R. 3017, a similar brownfields reauthorization bill, via voice vote.

None of the four brownfields bills in the House propose changes to liability or prospective
purchasers.

The Environmental Protection Agency’s brownfields program provides grants to those
who want to redevelop contaminated properties. The program started in 2002 and hasn't
been reauthorized since 2006.

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